|Copyright (c) 1999 The Regents of the University of California
UCLA Law Review
46 UCLA L. Rev. 1165
The Private Police
David A. Sklansky *
* Acting Professor of Law, UCLA School of Law. I am grateful for support provided by the UCLA School of Law, the UCLA Chancellor's Office, and the UCLA Academic Senate; for guidance and criticism offered by my colleagues Richard Abel, Michael Asimow, Daniel Bussel, Ann Carlson, Jody Freeman, Carole Goldberg, Robert Goldstein, Joel Handler, Kenneth Karst, Daniel Lowenstein, Grant Nelson, Gary Schwartz, John Wiley, and Stephen Yeazell; and for research conducted by Michelle Ahnn, Paul Derby, Goriune Dudukgian, David Frockt, Julie Gao, Julia Heron, Carolyn Hoff, Teresa Magno, and the wonderful staff of the Hugh & Hazel Darling Law Library, particularly Amy Atchison, Linda Maisner, and Linda Karr O'Connor. I presented earlier versions of this Article to the UCLA School of Law Junior Faculty Group, the Virginia Constitutional Law Workshop, the Georgetown Law and Society Workshop, and the Australian and New Zealand Society of Criminology; I thank all four groups for their assistance. As always, I benefited from thoughtful suggestions by Pamela Karlan, Deborah Lambe, and Jeff Sklansky. Louis Michael Seidman provided detailed and especially helpful comments on an earlier draft, and Stephen Heifetz gave the piece a careful, practitioner's review. William Cunningham, Darryl Holter, Robert McCrie, Thomas Wathen, and Robert Weiss shared their expertise about private security. Finally, for assistance with this Article and for much else, I carry a permanent, measureless debt to my late friend and mentor Julian Eule.
... For most lawyers and scholars, private security is terra incognita - wild, unmapped, and largely unexplored. ... Increasingly, though, government agencies are hiring private security personnel to guard and patrol government buildings, housing projects, and public parks and facilities, and a small but growing number of local governments have begun to experiment with broader use of private police. ... No doctrinal change, moreover, could obviate a second, more fundamental obstacle to deeming private policing state action on the ground that it carries out a "traditional governmental function": the problem of distinguishing private security personnel from other private individuals, like the agents of McDowell's employer in Burdeau. ... But the state remains present in other ways deemed significant by the Supreme Court's state action jurisprudence: it delegates arrest and detention authority, it enters into arrangements for cooperative policing, and it cedes to private firms responsibilities often viewed today as quintessentially governmental. ... Similarly, it may explain why lower courts have refused to resolve state action questions "by looking at the nature of the activities performed by security employees," and instead have stressed their formal status, explaining that "[a] security guard is not a police officer." ...
For most lawyers and scholars, private security is terra incognita - wild, unmapped, and largely unexplored. Criminal procedure, the branch of constitutional law that aims to regulate the conduct of the police, is a well-developed field of jurisprudence and of legal scholarship. The complaint is heard increasingly often that contemporary criminal procedure is too well developed - too ornate, too complicated, too far removed from first principles. No one makes that complaint about private security law. Indeed, no one even speaks of "private security law," for the very phrase suggests a unified and specialized body of rules that does not exist. Instead, private security personnel find their conduct governed by a hodgepodge of private contract [*1167] provisions, state and local regulations, and tort and criminal law doctrines of assault, trespass, and false imprisonment. On those rare occasions when private security employees become "state actors," constitutional criminal procedure gets added to the mix. Partly as a result of this disarray, legal scholars have tended to ignore private security. n1
[*1168] The neglect is increasingly indefensible. The private security industry already employs significantly more guards, patrol personnel, and detectives than the federal, state, and local governments combined, and the disparity is growing. n2 Increasingly, private security firms patrol not only industrial facilities and commercial establishments but also office buildings, shopping districts, and residential neighborhoods. Private policing poses no risk of supplanting public law enforcement entirely, at least not in our lifetime, and it is far from clear to what extent the growing numbers of private security employees are actually performing functions previously carried out by public officers. Still, if criminal procedure scholars continue to focus exclusively on the public side of law enforcement, our work is likely to become of steadily more marginal importance.
More importantly, ignoring private policing has impoverished our thinking about the public police and about constitutional criminal procedure. Private security firms offer tangible evidence about what some people want but are not receiving from public law enforcement, and what the public may increasingly pressure police departments to provide. The legal regime governing private security, moreover, is strikingly similar to the legal regime that many reformers have advocated for public law enforcement: deconstitutionalized, defederalized, tort based, and heavily reliant both on legislatures and on juries. It therefore offers tantalizing opportunities to test some of the most persistent objections to modern criminal procedure law. n3 And because maintaining order and controlling crime are paradigmatic governmental functions, private policing offers a unique and underused vantage point for reexamining the public-private distinction and the state action doctrine. Finally, police privatization furnishes an opportunity to reconsider the focus of constitutional law on negative obligations of government, and the overwhelming focus of constitutional criminal procedure on fairness to individual criminal defendants. The dramatic spread of policing-for-hire may require rethinking, for example, what it means to guarantee all citizens, regardless of wealth, the equal protection of the laws.
This Article seeks to demonstrate why private policing deserves more attention from legal scholars, to suggest what forms that attention should take, and to draw some tentative lessons from the little we already know. [*1169] Necessarily, given the longstanding disregard of private security, the Article is preliminary and exploratory. It offers more questions than answers, and more suggestions than conclusions. It aims not to exhaust a subject of study, but to begin one.
To do even that much requires some background. Part I of the Article thus sets forth what every scholar of criminal procedure or constitutional law needs to understand about today's private police: who they are, what they do, the rules that govern them, and the broad questions they present. I start by examining what is known, and what is unknown, about the private security industry and its recent, dramatic growth. To a striking extent, private firms now perform many of the beat-patrol tasks once thought central to the mission of the public police, although the manner in which private patrols operate has been largely hidden from view. I then turn to the legal rules governing private security personnel. I note the ways in which the rules differ from those applicable to public law enforcement, and the often overlooked ways in which they do not. Finally, I explore the conflicting reactions provoked by police privatization; those reactions, I try to show, reflect broader ambivalence about the boundary between public and private.
To understand that ambivalence and the manner in which it affects thinking about the private police, we need to appreciate not only the current contours of the private security industry, but also the manner in which the industry has developed. Part II therefore describes the history of private policing, which turns out to be tightly entwined with the history of public law enforcement. I trace how nineteenth-century police departments arose out of private patrol and investigative services, how twentieth-century law enforcement followed in the footsteps of nineteenth-century detective agencies, and how private security firms in the twentieth century moved into patrol niches vacated by the public police. I describe dramatic changes in what aspects of policing are thought most centrally public, but also observe the remarkable persistence of the notion that policing, however ill defined, should not be left in private hands. Part II concludes by drawing provisional lessons from the history of policing about the causes of the recent expansion of private security, the considerable but finite malleability in the forms and conceptions of policing, and the limits of legal rules in structuring the police as a social institution.
Having laid the groundwork in Parts I and II, I turn in Part III to perhaps the most obvious challenges that private policing poses for criminal procedure jurisprudence and scholarship: the unresolved and possibly irresolvable dilemmas it creates for the state action doctrine in criminal procedure. I consider here not only the problems that private policing presents for the [*1170] concept of state action, but also the lessons it may offer. Because it touches so strongly our ambivalence about the public-private divide, the private security industry places great strain on the doctrine that constitutional rights constrain only action attributable to the government. The manner in which courts have responded to that strain throws light on the centrality of symbolism in our understanding of the police and on the inevitability of a certain kind of formalism in state action law. Along with the formalism, I suggest, comes an unavoidable amount of arbitrariness and incongruity. Once recognized, however, those defects can perhaps become strengths.
Ultimately, I argue that police privatization raises challenges more important than determining whether to view security guards as state actors. Part IV addresses two of these challenges. The first is to learn more about the dimensions of the private police and about how they operate. This information is necessary for a sensible assessment of the rules governing private security personnel and could help test any number of proposals for reforming public law enforcement. The second challenge, more difficult than the first, is to reconsider whether the state owes all its citizens some minimally adequate level of police protection. An affirmative entitlement to policing may seem far from the concerns most immediately raised by the vaguely threatening private guards that increasingly patrol our daily lives. The chief task of this Article, however, is to demonstrate that private policing raises questions far deeper, and far more interesting, than we generally have recognized.
The private security industry forms part of at least two larger phenomena in contemporary criminal justice. The first is criminal justice privatization, a trend that includes private policing as well as private prisons and private adjudication. n4 The second is the "pluralizing of policing" - that is, the partial displacement of public policing not only by private security personnel, but also by community volunteers. n5 Although much of what follows will bear on those larger trends, I will have little to say about them directly. n6 This is not because they are uninteresting or unimportant, but rather [*1171] because the private police, for reasons I hope to make clear, pose special challenges and opportunities for judges and scholars.
Calvino's Marco Polo found it easiest to discuss Venice by describing other, more exotic cities. n7 So the paramount benefit of studying private security, I will suggest, is the new insight we can gain into old, familiar problems: the regulation of the public police, the limits of state action, and the affirmative duties of government. The cities Polo visited were worthy subjects of narrative in their own right, and private policing merits examination first and most obviously because we know so little about it, and because it increasingly is the rule rather than the exception. Ultimately, however, the greatest attraction of this new terrain is what it can teach us about what we thought we already knew.
I. A Private Police Primer
A. The Quiet Revolution
Among the least noticed of the plentiful witnesses at the murder trial of O.J. Simpson was Susan Silva, then director of administration at Westec Security, Inc. The prosecution called Silva to describe for the jury certain security devices Westec had installed in Simpson's house. Asked to describe Westec itself, Silva explained, "We're in the business of installing, monitoring, providing service and patrolling alarm systems." n8
Westec is not always so modest. Promotional brochures bill the company as the nation's "largest full-service security provider," n9 offering not only alarms but "sentry officers," n10 "escort services," n11 "roving patrols" in "highly visible" vehicles, n12 and "rapid deployment" n13 of "highly trained armed personnel," n14 prepared "for virtually any situation in the field." n15 Outside Simpson's house, three Westec signs warned of "armed response."
Drive for ten or fifteen minutes through any residential part of West Los Angeles and you likely will pass a hundred or more of these Westec signs, along with a comparable number of similar placards announcing the [*1172] armed protective services of Bel-Air Patrol or Protection One, Westec's two largest local rivals. n16 Over the past twenty years, the home security business has grown dramatically in Southern California. n17 A decade ago Westec signs already seemed almost "as common as weeds on Southland lawns"; n18 since then Westec has tripled its local clientele. n19 Just within the city limits of Los Angeles - which exclude, inter alia, the affluent communities of Beverly Hills, Manhattan Beach, and Santa Monica - about 800 private guards patrol residential neighborhoods, n20 more than one-tenth the entire patrol strength of the Los Angeles Police Department. n21
[*1173] Private residential patrols remain much less common outside Southern California, n22 but they are growing in popularity throughout the country. n23 Increasingly, moreover, private guards patrol not just the properties of individual customers but entire communities. Some of this is the result of the surge in walled-off, gated housing developments, which commonly use homeowner fees to pay for patrols by private security guards. As many as four million Americans may already live in these enclaves, and that number is growing rapidly; in Southern California, an estimated one-third of all new communities are gated. n24 But even ungated communities are increasingly hiring private patrols, either with homeowner fees or with government-approved special assessments. n25
[*1174] Residential security guards, moreover, are but one part - a relatively small but rapidly growing part - of the much larger workforce of private police personnel. That larger workforce has itself grown substantially faster over the past quarter century than both the population and the ranks of public law enforcement, effecting "a quiet revolution in policing." n26 At this point, security guards in the United States actually outnumber law enforcement personnel; there are roughly three private guards for every two sworn officers. n27 In California, the ratio is well over two to one. n28
These figures are necessarily imprecise, for at least two separate reasons. The first, to which I will return later, n29 is empirical: reliable information on the size and composition of the private security industry is notoriously sparse. n30 The second reason is definitional. One of the hallmarks of private [*1175] security is "its non-specialized character," n31 its tendency to be implemented in part by employees - such as store clerks, n32 insurance adjusters, n33 and amusement park attendants n34 - whose principal duties at least ostensibly lie elsewhere. n35
Still, there can be no doubt that specialized private security personnel play a large and growing role in policing America. Uniformed private officers guard and patrol office buildings, factories, warehouses, schools, sports facilities, concert halls, train stations, airports, shipyards, shopping centers, parks, government facilities - and, increasingly, residential neighborhoods. On any given day, many Americans are already far more likely to encounter a security guard than a police officer; n36 in the words of one industry executive, "the plain truth is that today much of the protection of our people, their property and their businesses, has been turned over to private security." n37
Nor is private policing limited to uniformed security guards. America has over 70,000 private investigators and over 26,000 store detectives; n38 together these individuals outnumber FBI agents by almost ten to one. n39 The ranks of private investigators, in particular, have swelled in recent [*1176] years, growing by nearly 50% during the 1980s. n40 Private detectives increasingly are hired not only to watch for shoplifters, n41 but also to investigate, and not infrequently to spy on, everyone from insurance claimants n42 and litigation opponents n43 to employees, n44 business partners, n45 and even prospective neighbors. n46
In addition to these wholly private personnel, an estimated 150,000 police officers moonlight as private security guards, often in police uniform. n47 This practice, too, appears to have escalated sharply; more than half of the officers in many metropolitan police departments now supplement their income with private security work. n48 In a growing number of cases police departments themselves contract to supply their personnel to groups of merchants or residents, and then pay the officers out of the proceeds. n49
[*1177] This public-to-private personnel leasing is the mirror image of the much larger practice of out-contracting, in which government agencies hire private security companies to perform work previously carried out by law enforcement officers. n50 According to one estimate, the fraction of security work contracted out by federal, state, and local governments increased from 27% to 40% between 1987 and 1995. n51 The trend seems likely to continue. n52 Much out-contracted security work consists of parking enforcement, traffic direction, and other tasks unlikely to bring the private employees into contact with the criminal justice system. n53 Increasingly, though, government agencies are hiring private security personnel to guard and patrol government buildings, housing projects, and public parks and facilities, n54 and a small but growing number of local governments have begun to experiment with broader use of private police. A few municipalities have hired private security companies to provide general patrol services; n55 more commonly, groups of residents or business owners in particular [*1178] areas have received permission to tax themselves (and their dissenting neighbors) to pay for private patrols. n56
If the precise size and contours of our national private police force remain unclear, its activities are even foggier. Security firms regularly assure the public that private guards, unlike law enforcement officers, serve only to observe and to report. n57 But clients often receive a different message. Pro-tection One, for example, bills itself to customers as "your personal police force; n58 its competitors make similar, if more circumspect, claims. n59
[*1179] About the actual activities of private security personnel there is little reliable information. Plainly, though, they often do a good deal more than observe and report. Generalizations beyond that are difficult, partly because the industry is secretive, n60 and partly because security personnel do not all perform the same functions. Store detectives, for example, make frequent arrests; n61 residential security guards typically do not. n62 Even residential secu-rity guards, however, may carry out brief detentions with some frequency. n63 And the security industry as a whole probably carries out significantly more stops, searches, and interrogations than is often imagined. n64 More generally, [*1180] despite the frequent claim by security firms that they are not "playing police," large numbers of private security personnel today appear chiefly engaged in what is, in essence, patrol work - work once understood as the principal function of public law enforcement. "The modern ... security guard's job, while different from that of modern public policemen, is very much like that of the traditional "cop on the beat.'" n65
Not coincidentally, the traditional "cop on the beat" has been something of a vanishing species for much of the past half century; this much-bemoaned development plainly has had more than a little to do with the proliferation of private guards during the same period. n66 The past few years, in fact, have seen increasing calls for a revival of traditional beat policing - calls, in other words, for police officers to act more like security guards. n67 The response to these calls has been limited, in part, by the hard fact that police patrols are expensive. n68 Even a greatly accelerated revival of beat [*1181] policing, though, would be unlikely to reverse the massive growth of private security, because, as I discuss later, n69 changing patterns of public policing have not been the only factor contributing to that growth.
Indeed, one of the most striking aspects of police privatization is its "per-vasive, international character." n70 The exponential growth of private security in the United States has been mirrored in Canada, n71 the United Kingdom, n72 Australia, n73 New Zealand, n74 and, to a lesser extent, the rest of the world. n75 [*1182] Private security is global in another sense as well: ownership and operation of the industry is increasingly multinational. n76
Other than its international character, however, little about private policing is entirely new. As we shall see, it was not until the nineteenth century in England and America that private law enforcement, and amateur, quasi-public constabularies and night watches, gave way to organized public policing; "the modern police are indeed a "new police' and in some important respects it is they and not the modern phenomena of agencies within the private security sector that are out of step with the historical lineage of policing forms." n77 Even professional, bureaucratic policing was pioneered by private firms: Allan Pinkerton founded his detective company before the Civil War, and well into the twentieth century he and his competitors provided America's only national law enforcement organizations. n78
[*1183] The shared, complex history of public and private policing - traced in Part II of this Article - bears heavily on contemporary understandings of the proper roles for the public and private sectors in enforcing law and maintaining order. Those understandings, however, are murkier than some-times thought, and that murkiness is reflected in the legal regime under which the private security industry operates.
B. Private Security Law
Criminal procedure law - the vast set of interrelated constitutional doctrines that regulate the day-to-day operations of police officers throughout the United States - has almost nothing to say about the activities of private security guards. That law consists chiefly of the Fourth, Fifth, and Sixth Amendments, made applicable to the states through the Due Process Clause of the Fourteenth Amendment, along with the Supreme Court's elaborate efforts to implement those provisions through rules of evidentiary exclusion and the restrictions on interrogations imposed by Miranda v. Arizona n79 and its progeny. All of this has been deemed applicable only to government action, not to private conduct. n80 As a result, the "criminal procedure revolution" n81 of the past half century has left private security largely untouched. Private searches fall outside the coverage of the Fourth Amendment, and evidence they uncover is almost always admissible; similarly, suspects interrogated by security guards are not entitled to Miranda warnings and generally do not receive them. n82